Appeal of Bailey , 3 B.T.A. 362 ( 1926 )

OPINION.

Littleton

: The foregoing findings of fact dispose of the questions involved in this appeal. The evidence presented shows that prior to the date of any offer to purchase the stock in the Consolidated Press Co., before any offer had been made by the taxpayer to sell his stock and prior to any offer to purchase the stock, he made absolute and valid gifts of certain of the 160 shares of stock owned by him in the Consolidated Press Co.; that it was not until five days after the gift that an offer was made to purchase the stock. The evidence further shows that some weeks prior to the date of the actual delivery of the stock taxpayer informed the donees of his intention to make the gift.

The Commissioner contends that the taxpayer knew that the stock was to be sold; that the negotiations had reached the point where the gift by the taxpayer constituted a gift of the proceeds from the sale of the stock; that the gifts were not bona -fide and were made with intent to defraud the Government of the tax upon the sale, and that the returns of the taxpayer for 1919 and 1920, which did not include the profit upon the sale of the stock, were willfully false and fraudulent with intent to evade the tax. There is no. evidence to support this contention. Even if we should find as a fact that the taxpayer had reason to believe that E. W. Bliss Co. or someone else would probably make an offer to purchase the stock, this would not, in view of the other evidence before the Board, have any effect-upon these particular gifts. The gifts here involved were of the stock and not of the proceeds therefrom, and no part of the amounts received by the donees constituted income to this taxpayer. It therefore follows that the determination of the Commissioner that the taxpayer realized a profit upon the sale of 160 shares of stock of the Consolidated Press Co., and that the returns, which did not include this profit, were willfully false and fraudulent with intent to evade the tax, was erroneous.

James dissents. On reference to the Board, Marquette and Tkammell dissent.